D. Prabhakar Reddy, Medak ... vs K. Murali, Hyd Ano
2022 Latest Caselaw 389 Tel

              HONOURABLE JUSTICE G. SRI DEVI

                    M.A.C.M.A. No.1746 of 2010

JUDGMENT:

Challenging the order and decree, dated 30.06.2010, passed in

M.V.O.P.No.760 of 2008 on the file of the Chairman, Motor

Accidents Claims Tribunal-cum-Principal District Judge, Medak at

Sangareddy, the claimant filed the present appeal.

The facts, in issue, are as under:

The claimant filed a petition under Section 166 of the Motor

Vehicles Act claiming compensation of Rs.5,00,000/- for the injuries

sustained by him in a motor vehicle accident that occurred on

21.05.2006. It is stated that on that day the claimant, along with

others, was traveling in Innova Car bearing No. AP 29 H-4329 from

Shirdi, Tuljapur to Hyderabd and when the said vehicle reached

near Nirna Cross Roads on N.H.No.9, the driver of the said vehicle

drove it in a rash and negligent manner with high speed and dashed

to a Bus-stand building, due to which the inmates of the vehicle

sustained grievous injuries and one person died on the way to the

hospital. Basing on the complaint, a case in Crime No.67 of 2006 has

been registered against the driver of the Car. Immediately after the

accident, the claimant was shifted to Government Hospital,

Mannaekkali and from there to Gandhi Hospital, Secunderabad.

The claimant had also taken treatment in Apollo Hospital,

Hyderabad and incurred an amount of Rs.2,00,000/- for his

treatment. It is further stated that the claimant had sustained

permanent disability due to the fracture injuries. Hence, the

claimant filed claim-petition against the respondents 1 and 2, being

the owner and insurer of the said Car.

Before the Tribunal, the 1st respondent remained ex parte and

the 2nd respondent filed counter denying the manner in which the

accident took place, age, avocation and earnings of the claimant and

also denied the injuries sustained by the claimant and the medical

expenditure incurred by him. It is also denied by the 2nd respondent

that the vehicle involved in the accident was insured with the 2nd

respondent and the person, who drove the vehicle, was having valid

and subsisting driving license to drive such vehicle and the vehicle

was roadworthy to ply. It is further contended that the claimant is

not entitled to claim interest on non-pecuniary damages and also the

interest claimed is highly excessive. In the additional counter, it is

stated by the 2nd respondent that as per the police record, the crime

vehicle was used for hire purpose at the time of accident and the

policy was issued for private use, as such, the 1st respondent has

violated the terms and conditions of the policy and therefore, the 1st

respondent alone is liable to pay the compensation and the 2nd

respondent has no liability to pay any compensation and the petition

is liable to be dismissed against the 2nd respondent.

Basing on the above pleadings, the Tribunal framed the

following issues:

1) Whether the accident occurred due to the rash and negligent driving of the driver of the crime vehicle?

2) Whether the petitioner is entitled for compensation, if so, at what quantum and from whom?

3) To what relief?

On behalf of the claimant, P.Ws.1 and 2 were examined and

got marked Exs.A1 to A6. On behalf of the respondents, R.W.1 was

examined and Exs.B1 to B4 were marked.

After analyzing the evidence available on record, the Tribunal

while awarding compensation of Rs.96,304/- with proportionate

costs and interest @ 7.5% per annum from the date of petition till

realization, held that since the claimant has traveled in a hire

vehicle, it is against the terms and conditions of the insurance policy

and therefore the insurance company is not liable to pay

compensation and it is the 1st respondent, the owner of the Car,

alone is liable to pay the compensation. Challenging the said

finding and also not being satisfied with the quantum of

compensation awarded by the Tribunal, the present appeal is filed

by the claimant.

Heard the learned Counsel appearing on either side and

perused the record.

Learned Counsel for the appellant/claimant that the Tribunal

dismissed the claim against the 2nd respondent on the ground that

the 1st respondent has violated the terms and conditions of the

insurance policy by using the crime vehicle for hire purpose. He

further submits that in case of violation of policy conditions

including driver of the offending vehicle not having valid driving

licence at the time of accident, gratuitous passenger etc., still the

Insurer has to pay the compensation to the claimant at the first place

and shall recover the same from the owner of the vehicle later. In

support of his contention, he relied upon the judgment of the Apex

Court in Manuara Khatun and others v. Rajesh Kumar and others1.

Insofar as the enhancement of compensation is concerned, learned

Counsel for the claimant would submit that the compensation

awarded by the Tribunal is on lower side. Though the claimant has

undergone operation for open reduction internal fixation with

reconstruction plate and screw and had taken treatment for 7 to 8

months as out-patient, the Tribunal did not award any amount

under the heads of loss of earnings, attendant charges, transport

charges and extra nourishment. It is further contended that the

amount awarded under the head of pain and suffering at

Rs.30,000/- is meager as the claimant took treatment for a period of

seven to eight months. It is also contended that the Tribunal ought

to have awarded adequate compensation. Therefore, he prayed to

enhance the compensation awarded by the Tribunal.

On the other hand, the learned Standing Counsel for the

Insurance Company, with regard to the quantum of compensation,

(2017) 4 SCC 796

has contended that the Tribunal has adequately granted the

compensation and the same needs no interference by this Court.

Insofar as the liability is concerned, he submits that the vehicle was

used for hire purpose and the claimant was traveling in the vehicle

as gratuitous passenger, therefore, the Tribunal has rightly

dismissed the claim against the 2nd respondent and the said order

does not require any interference.

On considering the arguments advanced by both the learned

Counsel, the issues that arise for consideration in this appeal are as

under:-

1. Whether the claimant is entitled for enhancement of compensation?

2. Whether the vehicle was used for hire purpose and claimant, who was traveling in the vehicle, comes under the purview of gratuitous passenger and if the claimant comes under the purview of gratuitous passenger, pay and recovery can be ordered against the insurer?

Point No.1:

Admittedly, the claimant filed a claim-petition under Section

166 of the Motor Vehicles Act, and the rash and negligent act on the

part of the driver of the Innova Car No.AP 29 H 4329 was proved.

As regard the quantum of compensation is concerned, a perusal of

the judgment would show that though P.W.2-Doctor, who treated

the claimant, deposed that he examined P.W.1 and found a major

fracture on post lip of acetabulum left hip gander on 3 DCT and an

abrasion over left little finger; P.W.1 had undergone operation for

open reduction internal fixation with reconstruction plate and screw

on 23.05.2006; P.W.1 was advised not to walk for three months and

also advised for physiotherapy and he has taken treatment for about

7 to 8 months as in-patient, the Tribunal did not award any amount

under the heads of loss of earnings, attendant charges,

transportation and extra nourishment. In view of the nature and

period of treatment taken by the claimant, this Court feels that the

claimant is entitled another amount of Rs.20,000/- under the heads

of loss of earnings, attendant charges, transport charges and extra

nourishment.

Point No.2:-

Insofar as the liability of the 2nd respondent-Insurance

Company is concerned, R.W.1 stated in his evidence that in Ex.B4-

161 Cr.P.C. statement, the witness, Krishna Reddy, stated that they

hired the Innova Vehicle and traveled in it. In Rajendra Singh v.

State of U.P. and another2, the Apex Court held that "the statements

under Section 161 Cr.P.C. being wholly inadmissible in evidence,

could not at all be taken into consideration." Relying upon the said

judgment, in N.Rama Krishna Reddy v. M.Santhakumari and

another (C.R.P.No.2939 of 2013), this Court held as under:-

(2007) 7 SCC 378

"It is well settled that a statement made under Section 161 Cr.P.C. is not a substantive piece of evidence. However, in view of the proviso to Sub-section (1) of Section 162 Cr.P.C., the statement can be used for the limited purpose of contradicting the maker thereof in the manner set out in the said proviso."

Further, in National Insurance Co. Ltd. V. Saju P.Paul3, the

Apex Court took note of entire previous case law on the subject

mentioned and examined the question in the context of Section 147

of the M.V. Act. While allowing the appeal filed by the Insurance

Company by reversing the judgment in Saju P.Paul v. National

Insurance Co. Ltd.4 of the High Court, it was held on facts that since

the victim was traveling in offending vehicle as "gratuitous

passenger" and hence, the insurance company cannot be held liable

to suffer the liability arising out of accident on the strength of the

insurance policy. However, the Apex Court keeping in view the

benevolent object of the Act and other relevant factors arising in the

case, issued the directions against the Insurance Company to pay the

awarded sum to the claimants and then to recover the said sum from

the insured in the same proceedings by applying the principle of

"pay and recover".

Recently, relying upon the said judgment, the Apex Court in

Manuara Khatun (1 supra) held that the direction to the Insurance

Company, being the insurer of the offending vehicle, which was

(2013) 2 SCC 41

2012 ACJ 1852

found involved in causing accident due to negligence of its driver

needs to be issued directing them to first pay the awarded sum to

the claimants and then recover the paid awarded sum from the

owner of the offending vehicle in execution proceedings as per the

law laid down in Para No.26 of National Insurance Co. Ltd. V. Saju

P.Paul (3 supra).

It is not in dispute that the Innova Car was insured and

Ex.B-1-policy clearly indicates that the accident has occurred during

the policy period, it can be said that the claimant was travelled as a

gratuitous passenger in the crime vehicle. In Anu Bhanvara Vs.

Iffco Tokio General Insurance Company Limited5, the Apex Court

while dealing with the case of gratuitous passenger directed the

insurer to pay the awarded sum to the claimant therein and recover

the same from the insured in the same proceedings.

For the aforesaid discussion and in view of the benevolence

object of the Motor Vehicles Act, even though the liability of

Insurance Company is exonerated, still the Insurance Company is

liable to pay the compensation to the claimant at the first instance

and then recover the same from the owner of the offending vehicle

by invoking the principle "pay and recover" as laid down by the Apex

Court in Manuara Khatun v. Rajesh Kr. Singh (1 supra).

Accordingly, the appeal is partly allowed by enhancing the

compensation amount awarded by the Tribunal from Rs.96,304/- to

2019(5) ALD SC 287

Rs.1,16,304/-. The enhanced amount shall carry interest @ 7.5% per

annum from the date of passing of the order i.e., from 30.06.2010 till

the date of realization. The 2nd respondent-Insurance Company is

directed to deposit the said amount to the credit of the O.P. along

with accrued interest within two months from the date of receipt of

a copy of this judgment, and then recover the said amount from the

1st respondent-owner. There shall be no order as to costs.

Miscellaneous petitions, if any pending in this appeal, shall

stand dismissed.

_____________________ JUSTICE G. SRI DEVI

02.02.2022 Gsn.